Posted on 08/20/2004 5:43:21 AM PDT by TexConfederate1861
Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator.
An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taney’s opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in "the public interest" to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative.
As Charles Adams wrote in his LRC article, "Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney," there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below).
All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of "saving the Constitution."
The first source of the story is a history of the U.S. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.
Upon hearing of Laman’s history of Lincoln’s suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln "scholars".)
But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887). In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him.
Yet another source is A Memoir of Benjamin Robbins Curtis, a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."
I recently discovered yet additional corroboration of Lincoln’s "great crime." Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861).
The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter:
After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight o’clock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o’clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia
As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln "destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end."
Exactly right.
August 19, 2004
Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).
Copyright © 2004 LewRockwell.com
"Each house of Congress established a committee to deal with the crisis. The House moved first, setting up on 4 December - the day of Buchanan's message - a committee containing one member for each of the thirty-three states. Two weeks later the Senate joined the compromise efforts. The Senate's Committee of Thirteen included the most important national figures in the Senate: Stephen Douglas, Jefferson Davis, John J. Crittenden, and William Seward. Although the two committees seemed to operate independently their efforts were linked by a desire to find proposals that would appeal to as much of the disaffected South as possible. Northern Democrats and border slave-state legislators were most active with plans, but interestingly enough,the most well-known Republican had a major role in the process.
"William Seward served only on the Senate committee, but he worked intently on shaping policy in both houses. He was a constant visitor at the Washington home of Charles Francis Adams, perhaps the most important member of the Committee of Thirty-three. Seward encouraged proposals that emerged from both committees in the attempt to reassure the South while maintaining Republican support.
"From the Senate committee came proposals under Crittenden's names: slavery within the states to be protected from national government interference; the revival of the Missouri Compromise line - no slavery above 36 degrees 30 minutes north latitude, slavery permitted below that line in territories held or to be acquired later; no cessation of slavery in the District of Columbia unless Maryland and Virginia agreed; no interference by Congress with interstate slave trade; slaveholders who lost runaways to the northern states to be compensated. Slavery was thus to be protected from every imaginable use of national authority and would be secure in existing southern states. Most important, if the United States expanded into Central America and the Caribbean, slavery would expand too. For some time Seward let people believe that he might favor this "Crittenden Compromise."
"From the Committee of Thirty-three came more moderate proposals with a two-fold purpose. First, to settle the crisis the South was promised that the fugitive slave law would be enforced and that state personal liberty laws, which conflicted with slave catching, would be repealed. In addition came a nonamemdable constitutional amendment [the "Corwin Amendment"] protecting slavery in the states from any form of federal interference. The second purpose was to divide the South if it could not be placated, to detach the already seceded lower south from the upper south, where secession was still being debated. The divisive proposal rested on the admission of New Mexico to the Union as a state. No mention was made of slavery, but the territory had a small number of slaves and a slave code to protect them. Because the climate and soil forecast a bleak future for slavery, however, many observers believed that slavery would soon die there. The lower south legislators opposed the New Mexico measure, but the upper south lawmakers supported it. Lincoln allowed the New Mexico idea to flicker.
"Lincoln accepted most of these measure with one crucial exception.... [t]he key Republican bedrock - no expansion of slavery into the territories. When word leaked out that such a proposal might be offered, Lincoln acted quickly and forcefully. He wrote Lyman Trumbull on December 10, William Kellogg the next day, Elihu Washburne two days later, Trumble again, and Thurlow Weed on the 17th, and John Defrees the next day, with one thundering message: "'Let there be no compromise on the question of extending slavery.'"
From The Presidency of Abraham Lincoln by Phillip Shaw Paludan, pp 31-32
Several things here refute your story.
(1) The "Corwin Amendment" was introduced in the House Committee of Thirty-three. Seward was not a member of the House.
(2) Seward was on the Senate Committee of Thirteen, but that committee did not propose an amendment.
(3) Lincoln remained in Illinois and corresponded by letter - an extremely slow method to conduct secret plots at distance.
(4) Lincoln was making few, if any, public statements at the time.
(5) Lincoln was corresponding with Thurlow Weed, in Washington, by mail.
Well, I am glad to see that you are reading something by Fehrenbacher - not the case study - but at least something!
"I wrote "[o]riginally Nelson's opinion was to be the "court" opinion, but upon a motion by Justice Wayne the justices re-voted to accept Taney's version as that of the court." Which did occur, as Justice Taney did write the version that was accepted by the majority."
Your idea was quite clear. You suggested that, upon the Wayne motion, the Court accept an existing decision. Such did not then exist.
So how many were arrested by July? Just curious.
Nonsense. The justices met and read Nelson's draft opinion. Justice Wayne made a motion that the position held by Taney be accepted by the court as their opinion. It'd be like 7 of us on this forum, after hearing my opinion on secession, and listening to GOPCapitalist's arguments, agree that his version would be better, and that he should author a decision agreed upon by us.
Three groups to be specific:
1. The public at large.
2. Certain strains of Lincoln scholarship, specifically the Marxist school and the Claremonsters.
3. Certain members of the FR Wlat Brigade, their exiled leader among them.
Like I said before, the Lincoln quote I posted is not an obscure one.
Indeed it is not, yet there are still people like Harry Jaffa who see bizarre esoteric anti-slavery messages "hidden" in practically every utterance Lincoln ever made. It's all bullsh*t of course, but it's certainly out there and it certainly has a following.
And "uncompromsing" is a dangerous term. You might have an uncompromising attitude against doing something, but it I pointed a gun at your child's head, would you do it? Would that then prove that you weren't "true and uncompromising" in that conviction?
That would be a case of coercion, or at least approaching coercion, and thus not a matter of choice to begin with. So no. That would not demonstrate an inconsistency on my part.
As usual, your response to salient arguments that you cannot account for or rebut on their own merits is to divert away from them by attacking the person.
Not at all.
You may tell yourself that, but it doesn't change the truth. Saying the equivalent of "Lincoln's actions were constitutional because the constitution justified Lincoln's actions," which you have done, is a textbook case of circular logic because (a) it intentionally ignores salient and substantial counterevidence about constitutionality and (b) it attempts to answer the question of constitutionality in lieu of that evidence by assuming constitutionality upon itself.
Rebellion and insurrection were preventing the rule of law, the the President had a obligation to "take Care that the Laws be faithfully executed."
But not a power to unilaterally suspend habeas corpus, nor is his obligation to execute the laws a blank check to do whatever he wants - a point the SCOTUS has affirmed dozens of times. Furthermore, to violate a clause of the constitution in its pretended "execution" would not be "faithful" at all because doing so would constitute a breach of the very same document supposedly being upheld.
And I suppose you'll next complain that Congress's retroactive ratification and authorization of Lincoln's emergency actions violated some imaginary "ex post facto" requirement that only you have
Nope. My ex post facto definition comes straight out of Fletcher v. Peck, the most significant founding era supreme court decision on the matter:
"An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed."
That would include both increasing the penalty of an offense for an enemy and lessening it for a politically connected friend.
It is of little concern when the ratification came, but only that it came.
Two full years of unconstitutional suspension, five federal court cases, and as many as 10,000 arrests say otherwise.
Save for the later ratification of his habeas suspension, they were on board with Lincoln in 1861.
The fact that they killed his habeas corpus bill in 1861 says otherwise.
I'm happy you agree. That puts you in rare company for a lincoln supporter as most of them do not.
But in the end, slavery was gone.
Forgive my lack of enthusiasm for buying into that sort of "ends justifies the means" garbage.
And I'll happily say it again. Swift is said to have observed that "You cannot reason a person out of a position he did not reason himself into in the first place." Thank you for proving him right, Dan.
How about original sources from the period? I'll give you three of those.
1. William Seward's letter to Lincoln, Dec. 26, 1860 - Library of Congress manuscripts collection.
2. Henry Adams, "The Great Secession Winter of 1860-61 and other essays" (this one's been in print for almost a century and isn't hard to find).
3. The New York Tribune, March 2nd and March 4, 1861.
Seward's letter contains the latter's message back to Lincoln in Springfield informing the former that the amendment sent through Weed had been proposed. Adams and the Tribune both document Lincoln's efforts to lobby the thing through congress.
Did Congress meet after 4 Jul 1861? Just curious.
BZZZT! WRONG. The text that became known as the Corwin amendment was introduced by Seward in the Committee of Thirteen in December. Charles Francis Adams introduced a House version with DIFFERENT LANGUAGE in the Committee of Thirty Three in January. It read:
Resolved, That it is expedient to propose an amendment to the Constitution of the United States providing that: No amendment having for its object any interference within the States with the relation between their citizens and those described in the second section of the first article of the Constitution as "all other persons" shall originate with any state that does not recognize that relation within its own limits, or shall be valid without the assent of every one of the States composing the Union.
The House committee passed this version while the senate was deadlocked. Lincoln arrived in DC in the meantime and called upon Corwin on or about February 25th to discuss the amendment. On the 26th Corwin went to the House floor and filed a substitute for the Adams text with Seward's original, aka the version backed by Lincoln, word for word. The House then passed the Seward version, it went back over to the senate, and the senate passed it.
(2) Seward was on the Senate Committee of Thirteen, but that committee did not propose an amendment.
BZZZT! WRONG. The amendment was indeed proposed by Seward TO the committee, which then deadlocked. The House picked it up from there to get it through. Even Lincolnite Jim Epperson's website notes this: http://members.aol.com/jfepperson/comp.html#William%20H.%20Seward%20of%20New%20York
(3) Lincoln remained in Illinois and corresponded by letter - an extremely slow method to conduct secret plots at distance.
BZZZT! WRONG. Lincoln did not correspond by letter - he corresponded by way of a messenger. GOP political boss Thurlow Weed came to Springfield on December 20th to meet with Lincoln where Lincoln gave Weed instructions on the amendment. Weed departed for New York by train on the 21st, was there a day later, and met in a rail car en route from Syracuse to Albany with Seward on the 22nd. Seward then left for Washington, arrived by the 24th, and submitted Lincoln's proposal to committee. He then penned Lincoln a letter on the 26th informing the president elect that everything was in order and the amendment, along with two others, had been proposed.
(4) Lincoln was making few, if any, public statements at the time.
That does not refute what I said in any way as Lincoln conducted the arrangements by way of PRIVATE meetings and messengers. The lone exception occured on March 2nd when the newspapers reported that Lincoln was lobbying members of congress to vote for the thing.
(5) Lincoln was corresponding with Thurlow Weed, in Washington, by mail.
BZZZT! WRONG. Weed met privately with Lincoln in Springfield on December 20th. See http://memory.loc.gov/cgi-bin/query/r?ammem/mal:@field(DOCID+@lit(d0527900))
That makes you 0 for 5!
Look, I have no illusions about Lincoln being some sort of god who never compromised, never made a mistake, and whose every word should be considered holy writ. He was a politician thrust into the greatest crisis that has ever faced the US. He did what he felt he had to do. Some of it might have been questionable, from a strictly constitutional point of view, 2000+ posts on this thread proves that. His ideas about race were typical of their time, which says just as much about the time as about him. He was willing to compromise his personal feelings about slavery in order to preserve the Union, but when that didn't work he took the opportunity to end slavery.
If there's one thing I've learned in this life, it's that, given a simple version of something and a complex version, the complex version is more likely closer to the truth. And the story of Lincoln and the Civil War isn't a simple one. Demagoguing politicians on both sides took an issue that should have been amenable to the discussions of reasonable men and progressively moved the country into two different directions until war was inevitable. People had been warning and threatening of Civil War between the north and the south for a good 40 years before Ft. Sumter. There is plenty of tragedy and blame to go around.
Heyworth's Razor?
It's not an "end justifying the means" situation. It's an excising of the cancer that had made the patient sick. Do you expect that, once war has begun, Lincoln should have left one of its proximate causes untouched?
Don't know about July, but the Official Records contain a Sept. 20, 1861 report from McClellan to Seward about the status of the Maryland legislature as of that date. His letter contains the names of persons ready for arrest and the updated totals through that date upon their arrests being affected:
For the Senate he reported 11 senators arrested, 1 absent from the state who supported secession, 3 secessionists still at large, 6 unionists at large, and 1 whose position was unknown at large.
On the House side: 40 arrested, 10 secessionists still at large, 15 unionists at large, and 8 whose position was unknown at large.
...and mutilating his remaining functioning entrails in the process.
Arrest of the Police Commissioners of Baltimore, Md.
Resolution of the House of Representatives and reply of the President.
O.R.-- SERIES I--VOLUME 2 [S# 2] -- CHAPTER IX.RESOLUTION.
Resolved, That the President be requested immediately to communicate to this House, if in his judgment not incompatible with the public interest, the grounds, reason, and evidence upon which the police commissioners of Baltimore were arrested, and are now detained as prisoners at Fort McHenry.
Adopted, July 24, 1861.
........................................................
REPLY.
WASHINGTON, July 27, 1861.
To the House of Representatives:
In answer to the resolution of the House of Representatives of the 24th instant, asking the grounds, reason, and evidence upon which the police commissioners of Baltimore were arrested and are now detained as prisoners at Fort McHenry, I have to state that it is judged to be incompatible with the public interest at this time to furnish the information called for by the resolution.
ABRAHAM LINCOLN.
WoW! That ALONE puts you into a differnt class than many on your side.
;o)
Arrest of Ross Winans at BaltimoreThe Baltimore Exchange of the 15th gives the following account of this gentleman’s arrest:
Ross Winans, Esq., was arrested last evening at the Relay House, as he was returning to the city from Frederick, where he was in attendance as one of the members of the legislature.
When the cars stopped at the Relay, an officer and several soldiers entered the cars, and the officer approached Mr. Winans and asked if he was Ross Winans, to which Mr. Winans answered affirmatively. The officer then said, “You are a prisoner of the United States.” Mr. Winans asked on what charge, and was told that he would be informed in the morning. Mr. Winans then expressed his willingness to accompany the officer, and he was taken from the car.
Gov. Hicks and a number of the members of the legislature were present, and the governor immediately proffered any amount of bail for Mr. Winans appearance, and requested that the officer release him, but met with a refusal.
The arrest created a most intense excitement on the train, and when the news reached this city it spread with great rapidity, and a universal condemnation of the act was expressed. It is understood that Mr. Winans will be detained at the Relay House until this morning, when Gen. Butler will have an interview with him.
Winans, a very rich and well known man, was released in May on parole, but was later arrested in September with other legislators.
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